The rapid evolution of the internet has consistently challenged traditional notions of ownership and intellectual property, necessitating a continuous adaptation of legal frameworks. From its inception, the internet’s inherent ability to facilitate the instantaneous and widespread copying and dissemination of information presented unprecedented challenges for copyright protection. The U.S. government, through various legislative actions and international agreements, has played a crucial role in attempting to establish and enforce intellectual property rights in this dynamic digital environment.

Online Creativity and Intellectual Property Rights

At the forefront of U.S. efforts to regulate online copyright matters is the Digital Millennium Copyright Act (DMCA), enacted by Congress in 1998. This legislation aimed to update U.S. copyright law for the digital age, establishing a framework for addressing issues like online piracy and providing safe harbors for online service providers. However, the internet’s decentralized nature and the ease with which digital content can be replicated and shared have meant that, despite the DMCA’s intent, piracy and rights infringement remain pervasive (Electronic Frontier Foundation).

Critics, including organizations like the Electronic Frontier Foundation (EFF), have argued that the DMCA has not fully achieved its goal of curbing piracy and, in some instances, has had unintended consequences (Electronic Frontier Foundation). The EFF, for example, has contended that specific provisions of the DMCA, particularly those related to anti-circumvention measures, can unduly restrict fair use, impede competition and innovation, stifle free expression and scientific research, and even interfere with legitimate computer security research (Electronic Frontier Foundation). The “fair use” doctrine, a cornerstone of copyright law allowing limited use of copyrighted material for purposes such as criticism, commentary, news reporting, teaching, scholarship, and research, frequently finds itself in tension with the strict enforcement mechanisms enabled by the DMCA. A historical instance highlighting this tension involved the lawsuit filed by Marvel Entertainment in 2004 against NCsoft and Cryptic over their online game City of Heroes, where Marvel alleged copyright infringement due to players’ ability to create characters visually similar to Marvel’s intellectual property within the game’s customization system. Such disputes underscore the complexities of applying traditional copyright principles to the interactive and user-generated content characteristic of online platforms.

Copyright Protection in Cyberspace

Beyond national legislation, international cooperation has been vital in addressing global intellectual property concerns. Even before the DMCA, the World Intellectual Property Organization (WIPO) played a significant role in harmonizing international copyright law for the digital age. In 1996, WIPO established two key treaties: the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT). The WCT was designed to protect authors of literary and artistic works, extending copyright to computer programs and original databases (World Intellectual Property Organization). The WPPT, on the other hand, focused on “related rights,” protecting the rights of performers and producers of sound recordings (World Intellectual Property Organization). These treaties aimed to ensure fundamental rights, such as compensation and acknowledgment for creators, and to extend further protections in the digital realm (World Intellectual Property Organization).

Supported by these international agreements and the DMCA, various forms of digital communication now enjoy copyright protections. Original content on websites and blogs, for instance, is covered by copyright laws (U.S. Copyright Office). However, the dynamic nature of the web, with content constantly being updated and altered, continues to pose challenges for maintaining consistent copyright protection. The requirement that a work exist in a fixed and tangible form to earn copyright protection means that rapidly evolving online content or iterative versions may require careful management to ensure continuous coverage.

The RIAA versus Piracy

The issue of online piracy gained significant public attention in the late 1990s and early 2000s with the rise of peer-to-peer (P2P) file-sharing technologies like Napster, Kazaa, and LimeWire, which facilitated the widespread sharing of music files. In response, the Recording Industry Association of America (RIAA) launched an aggressive campaign to combat music piracy, often leveraging the provisions of the DMCA. Beginning around 2003, the RIAA shifted its strategy from solely targeting the software providers to pursuing individual “uploaders” – users who made copyrighted music available for others to download (U.S. Copyright Office).

This led to thousands of lawsuits against individuals, including highly publicized cases that were criticized by many as an “unprecedented legal campaign against its customers (Electronic Frontier Foundation).” While P2P networks have evolved, modern piracy challenges now extend to illegal streaming sites, torrenting platforms like The Pirate Bay, and illicit distribution of film, television, and video game content. These ongoing battles continue to raise fundamental questions about the liability of online platforms for the content their users share, a legal issue that remains central to discussions about future internet legislation.

The Law and Online Interactions

Beyond formal copyright law, the legal landscape of online interactions is also shaped by terms of service (TOS) agreements and other legislation.

TOS Agreements

Terms of Service, which are legally binding contracts users must agree to before accessing software or online services, delineate the rules of engagement, permissible conduct, and the responsibilities of both the user and the service provider. For example, platforms like YouTube or social media sites like Facebook (now Meta) have extensive TOS agreements that govern everything from content moderation to data privacy. While these agreements are ubiquitous and crucial for managing vast online communities, many users, deterred by their length and legal jargon, often accept them without thorough review.

This practice can have significant implications, as TOS agreements often contain clauses related to user-generated content, data usage, dispute resolution, and limitations on liability. Breaches of these terms can lead to account suspension or termination, highlighting the substantial power that service providers hold over users’ digital lives, especially as individuals become increasingly reliant on online services for communication, work, and social interaction. Furthermore, laws like the 1986 Computer Fraud and Abuse Act continue to be applied to online activities, underscoring that the internet, despite its perceived anonymity, is subject to legal oversight for criminal behavior.

The Case of Megan Meier

The tragic case of Megan Meier in 2008 brought to the forefront the complex and often ambiguous legal landscape governing online behavior, particularly concerning terms of service (TOS) violations and the application of existing laws to novel digital harms. Lori Drew, a 49-year-old woman, was accused of creating a fictitious MySpace profile of a teenage boy to cyberbully 13-year-old Megan Meier, who subsequently died by suicide. The genesis of this digital deception stemmed from a dispute between Drew’s daughter and Meier. Using the fake persona, Drew initially engaged in flirtatious exchanges with Meier to glean information about her social life. Later, the tone of the messages shifted dramatically, with the fabricated persona ending the online friendship and sending cruel messages, including the devastating assertion that “the world would be better off without you.” Megan Meier tragically took her own life later that same day (Steinhauer, 2008).
Upon the revelation of Lori Drew’s identity, Megan Meier’s parents sought legal recourse. However, the absence of specific state laws in Missouri, where the tragedy occurred, to address cyberbullying or online harassment in such a context posed a significant challenge for prosecutors. This legal void led prosecutors to pursue charges in California, the state where MySpace’s servers were located. Prosecutors had decided that:

Since there were no laws that applied in Missouri, the state where this tragedy occurred, [Drew] will face trial in California (the home of MySpace), where she will be charged with—of all things—TOS violations. Creating a false identity goes against MySpace’s terms of service. As a result, she will be facing one count of conspiracy and three counts of accessing a computer without authorization (Spalding, 2008).

The unprecedented nature of the case saw Drew charged with one count of conspiracy and three counts of accessing a computer without authorization, primarily under the Computer Fraud and Abuse Act (CFAA), by alleging that creating a false identity violated MySpace’s terms of service. This unique legal strategy raised fundamental questions about the enforceability and legal weight of online “contracts,” or TOS agreements, and the extent to which their violation could constitute a criminal offense (Spalding, 2008).

The Computer Fraud and Abuse Act (CFAA), enacted in 1986, was initially designed to combat computer hacking, unauthorized access to government or financial computers, and other forms of cybercrime. Its application in the Drew case, where the alleged offense was a violation of a website’s TOS rather than a traditional hacking incident, was highly controversial. In August 2009, a jury did find Drew guilty of misdemeanor counts of “unauthorized access (Paul, 2009).” However, the presiding judge subsequently overturned the conviction, expressing concerns that the CFAA was not intended to criminalize simple contractual violations on the internet. This judicial decision underscored the difficulty of applying pre-internet era laws to new forms of online misconduct and highlighted the need for more tailored legislation.

While Lori Drew’s conviction was ultimately overturned, the Megan Meier case had a profound impact. It served as a stark public awakening to the potential for severe real-world consequences stemming from online behavior and the critical role of TOS agreements in attempting to govern this behavior. The case spurred legislative action at both state and federal levels, prompting discussions about creating new laws specifically designed to address cyberbullying, cyberharassment, and other forms of online abuse. For instance, in the wake of the Meier tragedy, Missouri and other states enacted anti-cyberbullying laws. Federally, there have been ongoing efforts to update and refine cybercrime legislation to address evolving online harms better, though comprehensive federal legislation directly criminalizing cyberbullying with a broad scope has remained a complex and debated issue.

The Drew case also brought heightened attention to the power and enforceability of TOS agreements. It highlighted that while these agreements are ubiquitous and often clicked through without complete comprehension, they represent legally binding contracts that users enter into with online service providers. Breaches of TOS can result in various consequences, from account suspension and content removal to, in rare and extreme circumstances, legal action. More recent legal and social debates continue to grapple with the implications of TOS, particularly concerning content moderation, data privacy, and the extent to which platforms can dictate user behavior. The case of Megan Meier remains a potent reminder of the complex interplay between technology, law, and personal responsibility in the digital age, catalyzing ongoing efforts to refine legal frameworks to protect individuals from online harm.

Crimes on the Internet

The rapid expansion of the internet has fundamentally reshaped how individuals interact, but it has also created new avenues for criminal activity. Despite a common misconception of inherent anonymity online, law enforcement agencies have progressively developed sophisticated methods to trace digital footprints, demonstrating that the internet is not a shield against legal accountability for illicit behavior. The ability to requisition Internet Protocol (IP) addresses and trace them back to individuals’ devices has led to numerous prosecutions for crimes committed in the digital realm, mirroring enforcement efforts in more traditional contexts.

Online Hate Crimes and Anonymity

A landmark case that solidified the legal precedent for online hate crimes was the 1998 conviction of Richard Machado. At 21 years old, Machado was found guilty of sending racist death threats via email to 59 Asian students at the University of California, Irvine. Machado, a former student, signed his emails “Asian Hater” and explicitly stated, “I will make it my life career to find and kill every one of [you].” Prosecutors successfully argued that sending such threats based on race or ethnicity, and interfering with the victims’ right to attend a public university, constituted a federal crime (Macavinta, 1998).

This case was crucial because it established that hostile communications sent over the internet carried the same legal weight and criminal penalties as threats conveyed through more traditional means like telephone calls or physical mail. The prosecution’s stance was clear: a line exists in cyberspace, and crossing it would result in the same legal repercussions as actions performed offline.

This principle was further underscored in later cases, disabusing the notion that the internet somehow confers immunity from prosecution. For instance, Walter Edward Bagdasarian was arrested in 2009 by U.S. Secret Service agents for posting a racist threat on a Yahoo message board concerning then-presidential candidate Barack Obama. His post, which predicted Obama would “have a 50 cal in the head soon,” exemplified how authorities could swiftly trace supposedly anonymous online activity using IP addresses and take such threats seriously (Macavinta, 1998). These cases highlight the increasing sophistication of digital forensics and law enforcement’s commitment to prosecuting online offenses.

The evolving nature of internet law continues to grapple with various complexities. While some argue that internet regulation should closely mirror that of traditional media, recognizing that online communications carry the same legal responsibilities, others contend that the unique characteristics of the internet demand distinct legislative considerations. For example, questions persist regarding jurisdiction: if a podcast is broadcast globally, which national or regional laws apply if a violation occurs? The rapid pace of online content creation also complicates copyright protection, particularly for user-generated content on forums or personal websites, raising questions about ownership and liability for infringement. Furthermore, issues like email spam continue to prompt discussions about whether they should fall under the same regulatory frameworks as telemarketing, and broader privacy rights for internet users remain a significant area of debate and policy development.

A key aspect of modern internet use that adds another layer of complexity to the notion of anonymity is the rise of Virtual Private Networks (VPNs). VPNs encrypt internet traffic and route it through servers in different locations, effectively masking a user’s actual IP address and making it significantly harder to trace their online activity. While VPNs are widely used for legitimate purposes, such as enhancing online privacy, securing data on public Wi-Fi, and bypassing geo-restrictions for content access, they can also be exploited by individuals seeking to commit crimes online while attempting to evade detection. This capability presents a continuous challenge for law enforcement, as it complicates the process of tracing malicious actors and gathering digital evidence. However, even with VPNs, advanced forensic techniques, and international cooperation among law enforcement agencies, it is possible to pierce through layers of anonymity, demonstrating that while VPNs offer enhanced privacy, they do not guarantee absolute invulnerability to legal scrutiny for criminal acts. As the internet continues to grow and more complex issues reach the courts, authorities are constantly adapting to address media issues within this rapidly evolving digital landscape.

Even more challenging for law enforcement is the existence of the “dark web,” a hidden portion of the internet that is not indexed by standard search engines and requires specific software, like Tor (The Onion Router), to access. While the dark web has legitimate uses for privacy-conscious individuals, journalists, and whistleblowers, it has also become a haven for illicit activities due to its enhanced anonymity. Markets for illegal drugs, weapons, stolen data, and even child exploitation material thrive in this hidden layer of the internet. The sophisticated encryption and layered routing used on the dark web make it significantly more difficult for authorities to identify users and trace transactions compared to the surface web or even traffic masked by a VPN. This persistent challenge compels law enforcement agencies worldwide to invest heavily in specialized cybercrime units, develop new investigative tools, and foster international collaboration to combat criminal enterprises operating within these opaque digital spaces. As the internet continues to grow and more complex issues reach the courts, authorities are constantly adapting to address media issues within this rapidly evolving digital landscape.